Opinion
NO. COA10-1196 Iredell County No. 08 CRS 53782
08-16-2011
STATE OF NORTH CAROLINA v. STEVEN MITCHELL GALATI
Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State. Megerian & Wells, by Franklin E. Wells Jr., for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Appeal by defendant from judgment entered 24 February 2010 by Judge John L. Holshouser in Iredell County Superior Court. Heard in the Court of Appeals 9 March 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State.
Megerian & Wells, by Franklin E. Wells Jr., for defendant-appellant.
STEELMAN, Judge.
Based upon his observations made during a consent search of defendant's vehicle the officer had probable cause to extend the search into a hidden compartment located under the roof of the vehicle, that contained contraband. Where the trial court intervened to manage testimony given at trial, this did not amount to a comment on the evidence. The trial court's brief comment that only the defendant could know what he was thinking was not an improper comment concerning defendant's right to remain silent or to testify.
I. Factual and Procedural Background
On 6 May 2008, Sergeant Gary Simpson (Sergeant Simpson), of the Iredell County Sheriff's Department pulled Steven Galati (defendant) over on Interstate Highway 77 for speeding 75 miles per hour in a 70 mile per hour zone and displaying a partially obscured license plate. At the time of the traffic stop, the vehicle defendant was driving appeared to be following another vehicle which was also speeding. After checking the defendant's license and registration, Sergeant Simpson asked defendant to exit his vehicle and come to his patrol vehicle. Sergeant Simpson then gave defendant a warning citation for speeding and improper registration, explained his reasons for doing so, and indicated that defendant was "free to leave." Sergeant Simpson continued to talk with defendant, questioning him about potential involvement in illegal activity. Sergeant Simpson then asked for permission to search defendant's vehicle. Defendant consented to the search. Sergeant Simpson pulled the vehicle further off the highway and inspected the interior of the vehicle. He noticed that the interior roof of the vehicle was harder than usual, and significantly lower (eight inches). The trial court found as fact that a person could not operate the vehicle without tilting his head to the side. Sergeant Simpson pried open a crack in the interior roof and discovered a hidden compartment. In the compartment he saw several bags containing what appeared to be green vegetable matter. Sergeant Simpson's experience as an officer led him to believe the bags contained marijuana. His suspicions were confirmed by his drug dog, and later by the SBI Laboratory.
Defendant was arrested and charged with trafficking in marijuana by transportation, N.C. Gen. Stat. § 90-95(h)(1), and trafficking in marijuana by possession, N.C. Gen. Stat. § 90-95(h)(1). On 23 February 2010, a jury found defendant guilty of trafficking in marijuana by transportation but acquitted him of trafficking in marijuana by possession. Defendant was sentenced to the statutorily mandated sentence of twenty-five to thirty months imprisonment.
Defendant appeals.
II. Motion to Suppress
In his first argument, defendant contends that the trial court erred in denying his motion to suppress the search of his vehicle because Sergeant Simpson lacked probable cause and the search exceeded the reasonable limits of the consent given. We disagree.
A. Standard of Review
Appellate review of a motion to suppress at trial is "strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted).
B. Analysis
In the instant case, the trial court placed its findings of fact in the record. The relevant findings are as follows:
One, the Defendant was stopped by Sergeant Gary Simpson of the Iredell County Sheriff's Office for exceeding the speed limit, and the officer was in the process of issuing a warning ticket when it clearly appeared to the officer that the interior roof or headliner of the vehicle had been built down so low that the Defendant's head had to be positioned sideways as he sat behind the steering wheel.
Two, that at the time of the stop the officer smelled a strong odor of air freshener coming from within the vehicle and also observed a cell phone located upon the front console of the vehicle.
Three, Officer Simpson inquired if the Defendant was carrying anything illegal in the van, to which the Defendant replied, quote, no, unquote. The Defendant thereupon gave consent for a search of the vehicle stating that it was owned by a friend who was paying him $200 to drive the vehicle from New York to Tampa, Florida and that upon delivery the friend was arranging to fly the Defendant from Florida back to New York. The officer determined that the vehicle had a temporary 30-day license tag issued by the State of Florida; and further, Sergeant Simpson thought it unusual that a vehicle travelling [sic] from New York to Florida should have a tag issued by Florida in the first place.
Next number, [sic] that the officer had some 17 years of experience in law enforcement and was fully trained in the habits of persons smuggling narcotics. He noted the construction of the hidden roof compartment, the fact that the Defendant appeared nervous, . . . .
The trial court then concluded that Sergeant Simpson had probable cause to search the vehicle. Defendant has challenged the evidence supporting these findings of fact and whether there was sufficient probable cause for the search. We hold that based upon the information gleaned by Sergeant Simpson as a result of the consent search, he had probable cause to continue the search, which included opening the headliner of the vehicle. See State v. Toledo, __ N.C. App. __ , _____ , 693 S.E.2d 201, 204 (2010), disc, review denied, 364 N.C. 332, 701 S.E.2d 673 (2010) ; State v. Parker, 183 N.C. App. 1, 10, 644 S.E.2d 235, 242 (2007) ("[D]uring investigation of the traffic infraction . . . or consent search conducted in conjunction therewith, the officer may observe facts sufficient to establish probable cause to believe the car contains evidence of a separate crime.").
Probable cause is "a suspicion produced by such facts as [to] indicate a fair probability that the person seized has engaged in or is engaged in criminal activity." State v. Schiffer, 132 N.C. App. 22, 26, 510 S.E.2d 165, 167, disc. review denied, 350 N.C. 847, 539 S.E.2d 5 (1999) (citing United States v. Sokolow, 490 U.S. 1, 7-8, 104 L. Ed. 2d 1, 10-11 (1989)). "Probable cause is a common sense, practical question based on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." State v. Wilson, 112 N.C. App. 777, 782, 437 S.E.2d 387, 390 (1993) (citation and quotation marks omitted). "The standard to be met when considering whether probable cause exists is the totality of the circumstances." Id. (citation omitted).State v. Williams, ___ N.C. App. ___ , _____ , 703 S.E.2d 905, 91314 (2011;, disc, review denied, _ N.C. _, 707 S.E.2d 237 (2011) .
The evidence presented at the suppression hearing supported the trial court's findings that the interior ceiling of the roof of the vehicle defendant was driving was low enough that defendant had to tilt his head sideways to operate the vehicle; that there was a strong scent of air freshener coming from an otherwise messy car; that the car bore a temporary registration tag from Florida but was purported to be traveling from New York to Florida; that the defendant appeared nervous; and that Sergeant Simpson had seventeen years law of enforcement experience. The facts in the instant case were sufficient to establish that Sergeant Simpson had probable cause to search defendant's vehicle.
At trial and upon appeal, defendant relies upon State v. Johnson, 177 N.C. App. 122, 627 S.E.2d 488 (2006), review allowed, judgment vacated in part on other grounds, 360 N.C. 541, 634 S.E.2d 889 (2006), to support his argument that the search in the instant case exceeded the scope of his consent. In Johnson, the defendant gave general consent to search his vehicle. The Court of Appeals held that the scope of defendant's consent would be measured by "'objective' reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Id. at 125, 647 S.E.2d at 490 (quotation omitted). It held that the general consent of the defendant did not include the officer removing portions of the door panel, where this resulted in intentional damage to the vehicle. Id.
We hold that the instant case is distinguishable from Johnson in that the prying open of the headliner in the vehicle defendant was driving was not based upon defendant's consent to a general search, but rather upon probable cause developed from evidence gathered during the consent search. In the instant case, the trial court found that based upon the information gleaned by Sergeant Simpson as a result of the search by consent, he had probable cause to continue the search, which included the opening of the headliner of the vehicle along what the trial court described as an "obviously manmade seam." See Toledo, _____ N.C. App. at _____ , 6 93 S.E.2d at 2 04; Parker, 183 N.C. App. at 10, 644 S.E.2d at 242. That portion of the search was not constrained by the scope of the defendant's consent.
This argument is without merit.
III. Comments of the Trial Court
In his second argument, defendant contends that the trial court impermissibly expressed an opinion on the evidence presented. We disagree.
A. Standard of Review
N.C. Gen. Stat. § 15A-1222 provides that "[t]he judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury."
Defendant did not object to the trial court's comment at trial. However, "[w]henever a defendant alleges a trial court made an improper statement by expressing an opinion on the evidence in violation of N.C.G.S. §[] 15A-1222 . . . the error is preserved for review without objection due to the mandatory nature of [this] statutory prohibition[]." State v. Duke, 360 N.C. 110, 123 623 S.E.2d 11, 20 (2005) (citation omitted), cert. denied 549 U.S. 855, 166 L. Ed. 2d 96 (2006).
"Whether a trial court's comments, questions or actions constitute reversible error is a question to be considered in light of the factors and circumstances disclosed by the record, and the burden of showing prejudice is upon the defendant." State v. Jones, 347 N.C. 193, 211, 491 S.E.2d 641, 652 (1997) (citation omitted).
B. Analysis
The testimony of which defendant now complains occurred during defense counsel's cross-examination of Sergeant Simpson:
Q. Well, he consented to it after he knew he had drugs in there. If he was such a knowledge [sic] smuggler, why didn't he tell you no, you're not going to search the car, if you know?
A. Could I explain, Your Honor?
THE COURT: That calls for a conclusion for him to read this man's mind which he cannot do.
Q. Yes, sir. Well, you're reading his mind that he knew what the drugs were in the vehicle because the ceiling was lower; right? You're saying that he knew -- he must have known that there are drugs in there because the ceiling was lower?
MR. CRANFORD: Objection.
THE COURT: Well, I think that he's testified that he simply observed that the ceiling was lower. As to what conclusion he couldn't have possibly drawn is speculation which I will allow your client to testify to that if he wishes.
Defendant specifically complains that the trial court's comments expressed an opinion about evidence before the jury.
"[T]he trial judge [] has the duty to supervise and control a defendant's trial, including the direct and cross examination of the witnesses, to ensure fair and impartial justice for both parties." State v. Ryder, 196 N.C. App. 56, 62 674 S.E.2d 805, 810 (2009) (quotation omitted). This Court has held that, pursuant to this duty, the court may intervene "to keep the testimony within bounds and to eliminate time consuming collateral matters and inadmissible hearsay." State v. Welch, 69 N.C. App. 668, 671, 318 S.E.2d 4, 7 (1984) (quotation omitted).
The trial court was acting to limit questioning that sought to elicit speculative testimony concerning the state of mind of the defendant. The trial court correctly noted that this was something that Sergeant Simpson could not possibly know.
Further, the defendant bears the burden of proving that he was prejudiced by the trial court's comment. Jones, 347 N.C. at 211, 491 S.E.2d at 652. The defendant has failed to demonstrate that he was prejudiced by the trial court's comment.
This argument is without merit.
IV. Comment on Defendant's Decision Not To Testify
Defendant also contends that the same comment by the trial court was an improper comment on the right to remain silent and his decision not to testify. We disagree.
The trial court's comment merely stated the obvious; that defendant was the only person who could testify as to why defendant consented to the search of his vehicle if he knew there were drugs hidden in the vehicle. It was not a comment upon defendant's right to remain silent or to testify. Further, this was an isolated comment, and was so "brief and indirect as to make improbable any contention that the jury inferred guilt from the failure of the defendant[] to testify." State v. Randolph, 312 N.C. 198, 206, 321 S.E.2d 864, 869-70 (1984).
We also note that the trial court instructed the jury that defendant's decision not to testify was not to influence their decision in any way. This instruction eliminated any potential prejudice from this comment.
This argument is without merit.
NO ERROR.
Judges CALABRIA and BEASLEY concur.
Report per Rule 30(e).